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Crossing the “t”s and Dotting the “i”s: Back to Square One in the Hawaii Entry Ban Dispute

In short, the Court of Appeals for the Ninth Circuit held that it did not have jurisdiction to consider an appeal of Judge Watson’s interlocutory order in which he concluded that he lacked the power to “clarify” the Supreme Court’s handiwork.  In the course of that ruling, however, the court of appeals explained that the plaintiffs had filed the wrong sort of motion:  instead of a motion to clarify the preliminary injunction as it had been partially stayed by the Supreme Court, the plaintiffs should simply move to enforce the preliminary injunction if they believe the government is violating it.  That, said the Ninth Circuit, is the sort of motion that the district court can and should entertain.

And so, that’s what the plaintiffs have now done:  They have filed a motion in the district court requesting that court to enforce its own injunction “as narrowed by the Supreme Court.”  They have also moved, “in the alternative,” for the court “to modify the injunction to specify that it prohibits the Government’s brazen violations of the Supreme Court’s directive.”

It shouldn’t take long for the parties to complete the briefing on that motion, because the issues were, in effect, already fully briefed on the motion for consideration.  [UDATE:  Judge Walton ordered today that “Defendants shall file their opposition by Tuesday, July 11, 2017. Plaintiffs shall file any reply by Wednesday, July 12, 2017. The parties’ opposition and reply briefs are limited to no more than 15 pages each.”]  Links to those earlier briefs, and to posts discussing the merits of the two principal questions, are again set out below.

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Here’s the plaintiffs’ motion for clarification.

The amicus brief filed by the ACLU on behalf of the International Refugee Assistance Project (IRAP) and the Hebrew Immigrant Aid Society (HIAS).

The government’s response.

The plaintiffs’ reply.

Plaintiffs’ motion to enforce.

[UPDATE:  Government’s response.  Plaintiffs’ reply.  Judge Watson’s order.]

On the question of which family members are covered by the injunction, see earlier posts from meLeah Litman, and Ryan Goodman/Adam Cox.

On the question whether refugees are covered when a resettlement agency has provided them a “formal assurance”–a question of great practical significance over these next three months–see also Alex Aleinikoff’s earlier post, and more recent posts by Peter Margulies here and here.

And for what it’s worth (these have been overtaken by events):

Here’s Judge Watson’s order denying the plaintiffs’ motion for clarification of the scope of the injunction, on the ground that the plaintiffs were seeking an interpretation of a Supreme Court opinion, indeed, a unilateral modification of the injunction “authored by the Supreme Court” itself.

And here’s Hawaii’s emergency motion to the Ninth Circuit Court of Appeals.

 

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Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).